PERM Recruitment Rules

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Department of Labor and USCIS have issued important cases and regulations that govern labor certification applications. A company that files a PERM labor certification case without considering these important restrictions may face a denial years after initiating the process resulting in the beneficiary exhausting time in H-1B or L-1 status and having to depart the United States for a year with dependent family members.

When reading these cases, it is important to keep in mind the labor certification program's purpose: to ensure that DOL issues a certification only when the employer cannot find available, qualified US workers who want the job. The decisions below discuss what type of recruitment is sufficient, which reasons are lawful for rejecting US workers who apply for the job, which qualifications are normal and which are not and other important questions.

The same newspaper may be used to satisfy the Sunday ad requirement and the "local or ethnic" newpaper requirement, but only if the newspaper is "local" or "ethnic." A newspaper circulated nationwide is not a local newspaper.

Certification properly denied where employer rejected several applications without first conducting an interview or determining whether they would qualify after a reasonable period of on-the-job training.

Beneficiaries may qualify using experience gained on-the-job only if the old job has less than 50% of duties in common with the position that is the subject of the labor certification application; consider (1) job duties, supervisory responsibilities and minimum qualifications, (2) place in hierarchy, (3) employer's prior employment practices, (4) whether and by whom the higher position was filled previously, (5) whether the higher position is newly created, (7) percentage of time performing each duty in each job, and (7) the salaries of each position. This rule was added to 20 CFR 656.17(i)(5)(ii).

Alternative minimum qualifications listed in items H-8 and H-10 must be substantially equivalent. 20 CFR 656.17(h)(4)(i). DOL properly uses the SVP code to determine substantial equivalency and not the H-1B 3-for-1 rule found at 8 CFR 214.2(h)(4)(iii)(D)(5). Bachelor's degree and two years experience is not substantially equivalent to no degree and 14 years of experience.

Alternative minimum qualifications listed in items H-8 and H-10 (1) a Master's degree plus three years of experience, or (2) a Bachelor's degree plus five years of experience is substantially equivalent for the purpose of 20 CFR 656.17(h)(4)(i). The absence of Kellogg language does not result in a denial.

An employer may not merge the reasons for rejecting several applicants and must instead identify the specific reasons for rejecting each candidate (editor's note: post Quantifi, it is best to provide a table in the recruitment report listing all applicants by name and the reason for rejecting each applicant who was rejected). An employer's evidence response to an audit notice is final; the employer may not submit documents in a motion to reopen/reconsider or on appeal to BALCA that were available at the time of its initial audit response.

The beneficiary must meet the minimum education and experience requirements no later than the date the labor certification was filed with DOL. DOL will provide duplicate labor certification approval notices at the request of a consular or immigration officer. H-1B extensions beyond 6th year available (1) for one year where labor certification pending for 365 days or longer, (2) for three years where I-140 petition has been approved. No 6th extension available if no approved I-140 and a labor certification has been pending less than 365 days.

Employer must promptly contact US worker appliacnts. For the contact to be timely, the interval between resume referral and contact must be spent evaluating resumes in the context of a reasonable and diligent pre-contact recruitment procedure. The proper focus is not on the employer's intent, but on the probable effect on U.S. applicants of the passage of time. BALCA does not provide a specific time, but 7 to 10 days is likely reasonable.

Where employee will work at unanticipated locations in the United States (i.e. the "roving employee"), the proper worksite for filing the prevailing wage and posting the Notice of Filing is the employer's US headquarters. The decision cites the 1994 ETA Field Memo 48-94. Where the headquarters is located in a relatively small city, the employer may additionally need to advertise the position in a national newspaper noting that the employee "must be willing to travel and/or relocate to various places in the United States."

Employer seeking to classify temporary workers under the H-2A or H-2B program could not establish that the jobs were temporary even though the company was a temporary agency because the company's clients provided a consistent stream of demand for temporary workers making the temporary agency's jobs permanent and not temporary or seasonal. BALCA cites Matter of Artee in Matter of Amsol to confirm that IT consulting companies can have permanent positions for workers who work on temporary projects for different clients when the demand for those temporary projects is consistent.

If the employer's Notice of Filing lists a wage rate only slightly less than the prevailing wage, it is invalid. In Baily, the employer's Notice of Filing was $333 per year less than the prevailing wage (99.51% of the prevailing wage) and BALCA denied the application.

If the employer obtains two prevailing wage determinations, one for its primary minimum qualifications and the other for its alternative minimum qualifications, it must use the one listing the higher wage.

If the State Employment Services Agency's job order website only allows the employer to choose a range of required experience (here the New Jersey SESA converted 12 months of required experience to 2 to 15 years of experience), the CO cannot deny the case because the employer's job order failed to specify the required 12 months.

For a "roving" position requiring travel to regional worksites, the employer listed its Fremont headquarters as the job site on form ETA 9089 and listed in recruitment ads the area of employment as San Francisco with regional travel required. The CO denied and BALCA reversed noting that DOL guidance indicates that for roving positions employers should list the headquarters as the worksite on form ETA 9089.

The employer must post the Notice of Filing for at least 10 consecutive business days in a conspicuous location at the worksite (usually near wage and hour and other legal notices) and the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions.

Employer may not reject US workers because they do not possess required skills unless the employer can demonstrate the the skills are actually required for the position and that the rejected US workers could not acquire the skills with a reasonable period of on-the-job training. The employer's mere assertion that the rejected US workers could not acquire the skills with a reasonable period of on-the-job training is not sufficient to meet the employer's burden of proof.

The National Prevailing Wage Center's Director must assign the most specific occupational title applicable to an employer's job description (this appears to contradict the NPWC's 2009 Guidance that directs NPWC to choose the occupational title with the highest wage if the employer's job description overlaps even slightly two or more OES job descriptions)

We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.

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